Thursday, August 19, 2010

At their annual meeting in Sacramento, CA on Aug. 19, the National Black Police Association endorsed Proposition 19 and the legalization of marijuana.

This is particularly significant because these cops have historically had to struggle to be taken seriously by their peers in the station house. This action by an organization that represents tens of thousands of active duty police officers is an important step toward establishing marijuana legalization as a legitimate position in the law enforcement community.

LEAP's new Executive Director Neill Franklin, a former patrol officer in Baltimore, Maryland, played a key role in speaking to the NBPA membership.

Wednesday, August 18, 2010

The Daily Caller reported August 18,2010 that the White House is sticking with the nomination of Michelle Leonhart, who has been the Acting Administrator of the Drug Enforcement Administration since 2007, and Deputy Administrator (the No. 2) since 2003. A few weeks ago, numerous groups called for the President to withdraw her nomination.

The bigger issue is that Leonhart has demonstrated that she is unable and unwilling to take on the major job of the next DEA Administrator, which is to work with the states in developing medical marijuana laws that make sense. During her entire career in DEA management -- since 1997 -- she has acted as though the calendar were stuck on October 1996 -- before the medical marijuana law that passed in November 1996 and received one million votes more than Bill Clinton did. Her leadership of DEA has ignored the medical marijuana laws passed in state after state after state, and ignored the hundreds of scientific studies conducted that establish the various medical benefits of marijuana.

On the key challenge that the DEA has to address going forward, she is utterly unqualified. That the Obama Administration does not recognize this is very disturbing.

I suspect that what compelled Obama to pick Leonhart is that he could not find anyone competent who was willing to take the lead in reforming an antiquated agency staffed with zealots committed to a hopeless mission. The rumor in D.C. is that everyone they asked turned down the offer.

Tuesday, August 10, 2010

My old friend Mark Kleiman (we were in college together and have stayed in close touch over years since we are both very interested in drug policy) had an op-ed in Los Angeles Times on July 18 on Proposition 19. Mark is usually brilliant, and great at developing "thought experiments." Mark is also a contrarian. He loves to argue, especially against the conventional wisdom. But unless I've misunderstood him, I think he's being sneaky in this piece.

His main point is that California voters can't "legalize a federal felony," namely growing or selling marijuana.

However, I think he misses the main effect of Proposition 19 which is to legalize adult personal possession and personal cultivation of marijuana in a plot of no more than 25 square feet (a five foot by five foot little garden) under California law, and permit a person to transport their own marijuana. It will remain a crime for anyone to provide marijuana to a person under 21 years of age, and serious crime to distribute to kids under 18, with very heavy penalties for distributing to children under 14.

For those adults who simply use cannabis on social occasions -- the overwhelming majority of users -- this amounts to functional "legalization." The police who arrest the average Californian who uses marijuana is operating under state law, such as a deputy sheriff, a city police officer, or a California Highway Patrol officer. Proposition 19 will stop those arrests.

The truth of Mark's point that "California voters can't 'legalize a federal felony,'" depends, to paraphrase Bill Clinton, on what "can't" means.

Californians "can't" change federal law in a state initiative. But they can legalize conduct that is a federal felony as far as California law goes.

As everyone knows, many laws may be "on the books," but they are minimally enforced, if ever. In Washington, D.C., for example, adultery was a crime until recently, even when Newt Gingrich was cheating on his second wife. You know, when they "legalized" adultery in the District of Columbia, there was no outrage, or apparent change in sexual mores.

But despite all the adultery there used to be in Washington, D.C., no one can recall an arrest or prosecution for the crime. Now there are three different reasons for this. The first is that, even though adultery hurts society by breaking up families and hurting children, most people (including cops, prosecutors and judges) don't think it warrants criminal punishment. In that sense, it is like simple possession of marijuana in that a majority of people do not believe you should go to prison or jail if you possess -- even though the law says you can.

The second reason for the lack of arrests is that the police have more important things to do. Even if a cop had probable cause to make an arrest for adultery, he or she would not do it because it is unimportant.

The third reason is that there are not enough police to undertake any more than cursory enforcement. Assume that the Chief of Police said that she wanted to strengthen families by prosecuting adulterers. That's simply just hot air. She doesn't have enough cops to do it. She doesn't have the ability to get behind the closed doors.

The federal law, 18 U.S.C. 844, says that to possess any quantity of marijuana is a misdemeanor, with a minimum sentence of a fine of $1000, and potential imprisonment of up to a year. Yet of the 20 to 30 million Americans who each year use marijuana (and possessed it, even if it was for the moment they held a joint, a pipe, a vaporizer, or "an edible"), no more than a couple hundred persons were convicted of that federal crime -- and that is because they tried to bring it into the country, they tried to bring it onto an airplane or they did it in a National Park, on the Mall in Washington, or at the federal Wolf Trap concert venue. The odds of the average pot smoker being convicted in federal court are smaller than 1 in 100,000.

Or another way of looking at it is that under federal law, in a practical sense, it is already legal to possess marijuana. I repeat, in a practical sense, it is already legal, as far as federal law goes, to possess marijuana. But not in a psychological sense; not at all in the sense of guaranteeing liberty.

The federal government is fairly zealously prosecuting large scale marijuana growers. But if you were growing 25 square feet of marijuana in California right now, and you were not selling it, your risk of being prosecuted by the federal government is pretty slim. They are looking at much bigger growers than that. Your legal risk is from the officers and deputies who enforce the laws of California.

Essentially all three of the reasons that adultery was not prosecuted in Washington, D.C. would be applicable to California if Proposition 19 passed, and that left only federal agents to prosecute marijuana possession and personal cultivation -- it is not that important, and there are not enough of them.

What really "can't" happen is that the federal government will enforce those laws in any meaningful way! Marijuana will be legalized on the books of California law and in the practice of federal law.

There is another important part of Proposition 19 which would allow cities and counties to license and tax commercial cultivation and distribution of marijuana. This kind of commerce is covered by the Controlled Substances Act. This is the law that was upheld by the U.S. Supreme Court in Gonzales v. Raich in the medical marijuana context. Because the number of cities and counties is small, I believe the Federal government could relatively easily sue them and obtain an injunction to prevent them from actually issuing such licenses. A person who attempted to go into the commercial cultivation and distribution business would not be able to get a valid state license in such circumstances.

Essentially this kind of commercial cultivation distribution is likely to continue under the guise of the pseudo-medical dispensaries that operate in many parts of California -- until the boundaries of federal-state regulation are further clarified.

What is to me most strange about Mark Kleiman's op-ed is that the regime of non-commercial, grow-your-own marijuana is the one that he endorses in his books and articles is the likely outcome of passing Proposition 19.

Harvard Professor Jeffrey Miron, the brilliant libertarian economist, advised the Tea Party, in a short a National Review Online column, in June 2010, to take the libertarian path on drug policy.

Amen. Drug prohibition is the paradigmatic government program that fails to deliver what it promises. It doesn't reduce crime, it creates crime. It doesn't protect health, it makes drug use more dangerous. It doesn't hurt drug traffickers, it guarantees that the successful ones will be rich.

Drug prohibition depends on the belief that drugs are substances so powerful that mere mortals cannot control their use of them. It is the faith in the supremely dangerous, seductive power of drugs, and the fear that any child is at risk of being seduced, that sustains the prohibition edifice.

Read John Kelly's column Aug. 4 in The Washington Post! It is a hilarious send-up of the usual hysterical anti-drug column! This is a columnist who is squeaky straight, spending half the year trying to raise funds for the YMCA summer camp program!

Tuesday, August 03, 2010

This morning at 11 a.m., President Obama signed S. 1789, the Fairness in Sentencing Act, in the Oval Office, reported by The Caucus blog at The New York Times. The House passed the bill on July 28 on a voice vote. I have been working for a bill on this subject since 1993.

This bill raises the quantities of crack cocaine that trigger the mandatory minimum sentences for trafficking enacted in 1986 (from 5 grams to 28 grams and from 50 grams to 280 grams) creating a ratio of cocaine to crack of 18 to 1 instead of 100 to 1. The Act also repeals a mandatory minimum sentence for simple possession of 5 grams of crack or more -- enacted in 1988, provides various directives to the U.S. Sentencing Commission regarding drug sentencing, calls for a review of the effectiveness of drug courts, and raises the fines that can be imposed for the crime of drug trafficking.

In 1986, I was counsel to the House Judiciary Committee, and played a key role in the creation of that law. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 500 grams of powder cocaine (a little more than a pound) or 5 grams of crack cocaine (a very small amount -- the weight of 5 packs of artificial sweetener or one nickel must be sentenced to at least 5 years (up to 40 years) in Federal prison. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 5000 grams (5 kilograms or about 12 pounds) of powder cocaine or 50 grams of crack cocaine (the weight of a typical candy bar) must be sentenced to at least 10 years (up to life imprisonment) in Federal prison. These sentences are triggered by different quantities for other drugs -- all relatively small quantities. In 1986, the federal prisons held 36,000 prisoners. This week there are over 211,000 federal prisoners, more than half of them there on drug charges, and a large fraction serving unjustly long sentences. Over 70 percent of the prisoners are serving sentences longer than 5 years.

The quantities that trigger mandatory sentences are mistakenly small. Contrary to the intent of Congress, they do not indicate that a trafficker is a major drug trafficker. A major cocaine trafficker organizes transactions in hundreds and thousands of kilos. One thousand kilos is one metric ton, which equals one million grams. The U.S. consumes about 300 metric tons of cocaine annually.

Unfortunately, year after year about 80 percent of the federal crack cocaine defendants are African-American. About 8 or 9 percent of the defendants are white. The racial disproportionality is utterly unwarranted.

Perhaps just as scandalous is that most federal drug defendants are neighborhood-level dealers, not the national level or international level dealers who should be the primary target of federal drug enforcement efforts. If most federal drug convicts were trafficking in hundreds or thousands of kilos, and operating at a very high level, no one would concerned about their race or ethnicity.

I have been working to repeal or reform the mandatory minimums I helped write since I left the Judiciary Committee in January 1989. I helped found Families Against Mandatory Minimums in 1991. In 1993, I wrote a draft of legislation to eliminate separate crack cocaine quantities so that at least crack and powder would be equal at the 500 and 5000 gram levels that was introduced by U.S. Rep. Charles Rangel (D-NY), the former Chairman of the House Select Committee on Narcotics Abuse and Control. He called the bill the "Crack Cocaine Equitable Sentencing Act." With that title, I thought it would never pass, and it never did.

Beginning in 2005, the Open Society Policy Center assembled a coalition that I joined along with Drug Policy Alliance, the ACLU, the Sentencing Project, Families Against Mandatory Minimum Sentences, the Methodist General Board of Church and Society, the National Association of Criminal Defense Lawyers, the NAACP, the Leadership Conference on Civil Rights, and many other groups including SSDP and LEAP, to push Congress to end the crack - powder disparity. For the coalition I drafted a bill I called the "Cocaine Kingpin Punishment Act" which eliminated the crack provisions and raised the fines that could be imposed against convicted traffickers.

In 2007, Sen. Joe Biden introduced a bill, S. 1711, with "cocaine kingpin" in the title and included some of the provisions of my draft. Senators Barack Obama and Hilary Clinton cosponsored his bill. There was a day of hearings on the bill, but no action. Rep. Sheila Jackson Lee introduced a companion bill in the House.

In 2009, Senator Richard Durbin (D-IL) introduced a revision of the Biden bill, now called the Fairness in Sentencing Act. He worked with Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT), who had expressed concern about the racial disparity in cocaine prosecutions, and what Sen. Hatch referred to as the "girl friend problem" of sentencing co-conspirators like principals. With Sessions and Hatch, Durbin was able to reach the compromise on 28 and 280 grams (18 to 1) and get it out of the Senate Judiciary Committee and out of the Senate on a voice vote.

I was very pessimistic that the House Democratic Leadership would bring the bill to the floor and risk a recorded vote. But House Majority Whip James Clyburn (D-SC) worked to get it to the floor. I believed that House Republicans would resist the bill as "soft on drugs," as Rep. Lamar Smith (R-TX), the ranking Republican on the Judiciary Committee, argued on the floor.

But I was wrong. The bill was brought to the floor, and Representatives James Sensenbrenner (R-WI) and Dan Lungren (R-CA) supported the bill. There was no record vote.

Since I did not think the bill would pass, and it did, my thoughts are that this is the best our political system can produce right now.

Republican support creates a political opening for President Obama to begin to issue orders commuting some sentences that are especially unjust -- if the Pardon Attorneys office is reorganized and expanded.

Ideally the Justice Department will begin more careful oversight of U.S. Attorney offices to assure that they focus on high level cases.